Adam Bernstein

The appellant appealed convictions for assault and assault with a weapon arising from a brief domestic confrontation involving his teenage daughter.

The trial judge found that the appellant angrily threw an empty plastic bottle and grabbed the complainant, rejecting a defence based on parental corrective force under s. 43 of the Criminal Code.

On appeal, the court held that the trial judge failed to properly analyze whether the thrown bottle constituted a weapon and whether injury was reasonably foreseeable.

The court also found that the trial judge failed to properly apply the reasonable doubt framework in assessing the appellant’s evidence and the corrective force defence.

The convictions were set aside and acquittals entered, as a new trial was not in the public interest.

The accused applied under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence obtained after Canada Border Services Agency officers examined his cell phone during a secondary inspection at the Sarnia border crossing.

Police had previously created a border 'Lookout' based on an investigation suggesting the accused possessed child pornography but lacked sufficient grounds for a warrant.

During a routine secondary inspection triggered by the lookout, an officer briefly viewed the accused’s phone and observed an image believed to be child pornography, leading to arrest and further searches.

The court held that routine border searches of goods, including electronic devices, fall within the powers granted under s. 99 of the Customs Act and do not engage the same privacy expectations as domestic searches.

The application to exclude the evidence was dismissed.

The Crown sought to prevent the accused from re‑litigating two pre‑trial rulings made during an earlier jury trial that ended in a mistrial after the trial judge recused himself for a reasonable apprehension of bias arising from a personal tax dispute with the Canada Revenue Agency.

The Crown relied on s. 653.1 of the Criminal Code, which presumes that evidentiary and Charter rulings from a mistrial remain binding at a new trial unless the interests of justice require otherwise.

The court held that although the provision creates a presumption favouring preservation of prior rulings, the circumstances of the recusal and the trial judge’s own comments suggesting that earlier rulings might appear influenced by the conflict undermined confidence in those decisions.

Given that concern, the interests of justice required that the impugned motions be re‑litigated before the new trial judge.

The Crown’s application to bind the parties to the earlier rulings was dismissed.

In a homicide prosecution, the Crown sought to introduce several hearsay statements attributed to a deceased victim and to unidentified bystanders during a fight.

The court considered whether the statements fell within the res gestae exception to the hearsay rule and whether they satisfied reliability requirements under the principled approach articulated in R. v. Khelawon.

The court admitted a statement reported by a witness that the victim said “Budja stabbed me” and described others holding him down, finding it spontaneous and proximate to the startling event and not so unreliable as to warrant exclusion.

However, statements allegedly shouted by unidentified bystanders during the fight were ruled inadmissible for the truth of their contents because the declarants were unknown and reliability could not be assessed.

Those statements were admissible only for the non-hearsay purpose of demonstrating what may have been audible to the accused during the altercation.